This case is about what courts can and can’t say about a law once the notwithstanding clause has been invoked. 

LEAF intervened before the Court of Appeal for Saskatchewan. LEAF is now intervening at the Supreme Court of Canada.

FACTS

In February 2024, a judge of the Saskatchewan Court of King’s Bench decided that even though the provincial government used the notwithstanding clause to protect its pronoun law from being found unconstitutional, a court can still declare that the law violates Charter rights.  

Because the notwithstanding clause permits rights-infringing laws to remain in effect, a simple declaration of violation of rights wouldn’t be enough to strike down the law. Even so, the judge found that courts are still within their rights to make that declaration. The government appealed this decision to the Court of Appeal for Saskatchewan.

In this case, the notwithstanding clause is shielding Saskatchewan’s pronoun law, which requires parental consent for school personnel to be permitted to refer to a trans or gender-diverse student under the age of 16 by their proper name and pronouns.  

The UR Pride Centre for Sexuality and Gender Diversity is challenging the law, claiming that it violates trans and non-binary students’ rights to security of the person and equality, as well as their right not to be subjected to cruel and unusual treatment. LEAF is also intervening in that case, which was on hold until the Court of Appeal decided whether courts are permitted to issue declarations once the notwithstanding clause has been invoked.  

At the Court of Appeal, the judges were also being asked to decide whether UR Pride is permitted to argue that the law violates the right not to be subjected to cruel and unusual treatment. Because the government of Saskatchewan only used the notwithstanding clause to shield the pronoun law from section 7 rights (the right to security of the person) and section 15 rights (equality rights), UR Pride then introduced a third argument – that the law violates trans and non-binary youth’s section 12 rights not to be subjected to cruel and unusual treatment. 

ARGUMENTS

In its intervention on the notwithstanding clause before the Court of Appeal for Saskatchewan, LEAF focused on the importance of upholding substantive equality when deciding whether courts can make a declaration of rights compliance. This means paying attention to who is being impacted by a law, which in this case, is trans and gender-diverse youth. The pronoun law, shielded by the notwithstanding clause, is causing significant material harm to these youth on a daily basis. LEAF argued that in this context, it is critical that courts publicly recognize the Charter violations that trans and gender-diverse youth are experiencing .

LEAF also argued that courts must be able to declare when a law violates Charter rights because it is essential for our democratic system. When a government uses the notwithstanding clause, our courts are unable to strike down the law, and our only recourse is via the ballot box. In these cases, if courts can declare when a government is violating our rights, voters can be better informed when they go to the polls.

LEAF is now bringing this same argument to the Supreme Court of Canada.

OUTCOME

In a critical victory for Saskatchewan’s trans and gender-diverse youth, a majority of the Court of Appeal for Saskatchewan decided that the challenge to Saskatchewan’s pronoun law could go ahead on the question of whether the law violates trans and non-binary youth’s section 12 Charter rights. The Court of Appeal also decided that although the provincial government used the notwithstanding clause to protect its pronoun law from being found unconstitutional, a court can still declare that the law violates Charter rights.   

If this decision is upheld by the Supreme Court, it will allow courts to inform the public when a law passed using the notwithstanding clause is discriminatory, which can impact decision-making at the ballot box and validate the experiences of those impacted by such laws.

The Court of Appeal for Saskatchewan’s decision is now on appeal to the Supreme Court of Canada, where LEAF is also interevening.

A date for the hearing has not yet been set.

At the Court of Appeal, LEAF is grateful to have been represented pro bono by Morgan Camley and Kay Scorer (Dentons Canada LLP). Barton Soroka (Gerrand Rath Johnson LLP) was an agent for LEAF in this case. 

Our case committee members at the Court of Appeal, who guided, informed and supported this intervention, were: Florence Ashley, Jamie Cameron, Jennifer Koshan, Robert Leckey (prior to judicial appointment), Samuel Singer, and Xue Xu. 

At the Supreme Court of Canada, LEAF is grateful to Morgan Camley, Tom Nichini, Mélanie Power, and Kay Scorer, (Dentons Canada LLP)who are representing LEAF pro bono. 

We are also grateful to our case committee members for this intervention at the Supreme Court: Florence Ashley, Natasha Bakht, Jennifer Koshan, Molly Krishtalka, Samuel Singer, and Xue Xu. 

 See the Court of Appeal’s decision here. 

See LEAF’s factum at the Court of Appeal for Saskatchewan here. 

See LEAF’s factum at the Supreme Court of Canada here.